Thompson v. State, 55468
| Decision Date | 27 February 1985 |
| Docket Number | No. 55468,55468 |
| Citation | 468 So.2d 852 |
| Parties | Gerald Kevin THOMPSON v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
L. Terrell Simpson, Picayune, for appellant.
Edwin Lloyd Pittman, Atty. Gen. by A. William May, Sp. Asst. Atty. Gen., Jackson, for appellee.
Before PATTERSON, C.J., and SULLIVAN and ANDERSON, JJ.
Gerald Kevin Thompson was indicted, convicted and sentenced to thirty (30) years in the Department of Corrections (15 years suspended) for the sexual battery of a female child, seven years of age. He appeals and assigns as error:
I. The state failed to prove beyond a reasonable doubt, by competent evidence, that the defendant committed the crime of sexual battery and the trial court erred in refusing to sustain the motion of the defendant to strike the testimony of Tracey Cook and to direct a verdict of not guilty.
II. The trial court erred by propounding to the state's chief witness, on its own motion, a series of questions which added to the credibility of the witness and prejudiced the defendant.
The indictment in pertinent parts follows:
GERALD THOMPSON being a male person above the age of eighteen (18) years, did wilfully, unlawfully and feloniously and without her consent because of her infancy of age (seven years), commit a sexual battery upon the person of Tracey Cook, a female child below the age of fourteen (14) years, to-wit: seven (7) years, by the penetration of his penis into the vagina of the said Tracey Cook and by the penetration of his tongue and his penis into the anal opening of Tracey Cook for the purpose of gratifying his lust and for the purpose of indulging his depraved, licentious sexual desires, contrary to and in violation of Section 97-3-95 of the Mississippi Code of 1972, as amended;
Both of the charges in the indictment are the penetration of the victim's body. The indictment flows from Mississippi Code Annotated, Sec. 97-3-95 (Supp.1984), which states:
A person is guilty of sexual battery if he or she engages in sexual penetration with:
(a) Another person without his or her consent;
(b) A mentally defective, mentally incapacitated or physically helpless person; or
(c) A child under the age of twelve (12) years.
The section's basic premise is "sexual penetration." Mississippi Code Annotated, Sec. 97-3-97 (Supp.1984), defines "sexual penetration" viz, "(a) ... any penetration of the genital or anal openings of another person's body by any part of a person's body, ..."
In West v. State, 437 So.2d 1212 (Miss.1983), an attempted sexual battery case, we held that penetration is the essence of Mississippi Code Annotated, Sec. 97-3-95. The case was reversed because of insufficient evidence.
We do not detail the sordid testimony of this record, but state only that in our opinion the evidence reveals no proof of sexual penetration as set forth in the indictment. The nature of the charges, an adult ravishing a child, are as repulsive to judges as doubtless they are to other mature individuals, but nevertheless our duty of reviewing the evidence is not diminished. Our study of the record discloses no evidence to support a conviction of sexual battery, in that there is no evidence of penetration as charged in the indictment and required by statute. We are of the opinion, therefore, the case must be reversed for insufficient evidence.
The state's only witness to the alleged occurrence was the nine year old girl (the alleged victim). After being qualified as a witness, she testified for the state and responded to numerous leading and other questions permitted by the court. The witness was of tender years giving testimony of what she had experienced about two years previously. Under these circumstances we are of the opinion the court did not err in permitting some of the leading questions. However, we caution the continued leading questions on cogent points, many of which were answered by an affirmative or negative nodding of the head, is hazardous...
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